WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
A, Inc. v. Victor Korotkov
Case No. D2002-0516
1. The Parties
Complainant is A, Inc., a Delaware corporation with its principal offices in Seattle, Washington, United States of America.
Respondent is Victor Korotkov, apparently an individual with an address at Sviridova Str. 44-2, Moscow, 120223, Russian Federation. Respondent�s Technical and Administrative Contact is Solncev Michail, Dimitrovs Str. 22-12, Moscow, 102114, Russian Federation, Phone: 212-09-66, and email: "domnet6@".
2. Domain Name and Registrar
The domain name in issue is: .
The registrar is BulkR, Baltimore, MD, United States of America (BulkRegister).
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the complaint in this proceeding via email on June 1, 2002, and in hard copy on June 5, 2002, together with the required fee.
On June 6, 2002, BulkRegister transmitted via email to the Center BulkRegister�s confirmation that (1) the domain name is registered with BulkRegister, (2) the UDRP applies to the domain name, and (3) the current status of the domain name is "active".
The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).
On June 10, 2002, the Center transmitted to the parties Notification of Complaint and Commencement of Administrative Proceeding, together with copy of complaint. The Center advised the parties that the formal date of the commencement of this administrative proceeding is June 10, 2002, and the last day for sending Respondent�s response to Complainant and to the Center is June 30, 2002. In addition, the Notification, in Paragraph 6, advised Respondent of the consequences of default, including among other things (1) this proceeding would go forward in the event of a default, and (2) the panel of arbitrators may draw such inferences from a default as it considers appropriate. Also, the Notification, in Paragraph 7, advised Respondent of the procedure for appointing arbitrators.
Respondent has not filed a response and is in default. On July 3, 2002, the Center transmitted to the parties Notification of Respondent Default. This Notification advised Respondent that the Center (1) would proceed with the appointment of panelists, (2) the panel would decide in its discretion whether or not to receive a response, if submitted later, and (3) the Center would continue to send communications to Respondent.
Complainant elected to have this matter heard by three panelists. Complainant designated three potential arbitrators from whom one was selected by the Center. In light of Respondent�s default, the Center chose the other two panelists. The panelists are Dr. Clive Trotman, Presiding Panelist, and Messrs. Jonas Gulliksson and David W. Plant. On July 30, 2002, the Center advised the parties of the appointment of the panel.
Also on July 30, 2002, the Center advised that absent exceptional circumstances, the panel is required to forward its decision to the Center by August 13, 2002.
4. Factual Background
The Complainant and its Registered Trademarks
The Complainant has been operating since 1995 an Internet web site that permits persons around the world to purchase books and other merchandise including motor vehicles on-line. Since its inception, Complainant has grown the business greatly. It now is a publicly-traded company employing 7,000 staff, with revenues of US$3 billion in fiscal 2001. At present, tens of millions customers from over 220 countries have made purchases through the site. In the first quarter of 2002, international sales accounted for over one-third of the A�s total sales.
Complainant has registered a number of country code TLDs and has advertised extensively in all types of media and on numerous Internet sites. A is registered as a trademark in the European Union and in 72 countries, and has over 400 additional registration applications pending all over the world. A�s application for the registration in Russia, where the Respondent resides, is currently pending.
Courts in the U.S.A. and in Greece have affirmed the widespread reputation of the mark and the strong association of the word "Amazon" with the Internet. Studies by Internet monitors have identified as one of the most frequently visited sites on the Internet. Some 500,000 web site operators worldwide have become A associates and are thus permitted to link to the A site and to display the mark on their web sites.
In February 2002 the domain name pointed to a web site operated from the Internet address "" which offered products including books, video games, computer products, electronics, toys and compact discs.
On February 21, 2002, Complainant attempted to contact Respondent�s Administrative and Technical Contact at the email address provided by Respondent to BulkR. The Respondent neither answered nor acknowledged Complainant�s email.
5. Parties� Contentions
A. Complainant
Respondent has sought improperly to profit from A�s substantial investment in its trademark and reputation by incorporating the famous AMAZON.COM® trademark into its domain name. Thus, Respondent seeks simultaneously to trade off of the goodwill the A name has come to enjoy among consumers and to reduce the value of that goodwill by improperly associating A�s name with goods and services from unrelated sources. As a result of Respondent�s actions, A�s hard-won reputation for premium quality is being diluted, the value of its trademarks is being diminished, and consumers are being misled and confused. The domain name should be transferred to A because it is confusingly similar to A�s trademark, Respondent has no rights or legitimate interests in the domain name, and Respondent registered and is using the domain name in bad faith.
1. The Domain Name Is Identical or Confusingly Similar to Complainant�s Trademark
Confusing similarity turns on use, similarity of the marks and terms in question, similarity of products and services, similarity of users and similarity of channels of distribution. Here, every relevant factor favors a finding that the domain name is confusingly similar to the AMAZON.COM® trademark.
2. Respondent has no rights or legitimate interests in respect of the domain name
Paragraph 4(c) of the Policy enumerates three grounds upon which Respondent can show that it has rights or a legitimate interest in the domain name. Respondent cannot demonstrate any of the three elements listed in Paragraph 4(c), and there are no other grounds upon which Respondent can assert a legitimate interest in the domain name.
3. Respondent Registered and Is Using the Domain Name in Bad Faith
Paragraph 4(b) of the Policy sets forth four non-exclusive circumstances which, if present, shall be evidence that Respondent registered and used the domain name in bad faith. Pursuant to paragraph 4(b)(iii), registration of a domain name primarily for the purpose of disrupting the business of a competitor constitutes registration and use of the domain name in bad faith. Pursuant to paragraph 4(b)(iv), intentional use of a domain name to attract, for commercial gain, Internet users to respondent�s web site by creating a likelihood of confusion with the complainant�s mark as to the source, sponsorship, affiliation, or endorsement of respondent�s web site, or of a product or service on respondent�s web site, is also evidence of registration and use of the domain name in bad faith. Respondent�s registration and use of the domain name clearly falls into both of these categories. Moreover, Respondent�s bad faith registration and use of the domain name can be inferred from Respondent�s failure to respond to Complainant�s efforts to contact him and from Respondent�s inclusion of the entire AMAZON.COM® trademark in the disputed domain name.
Internet users who mistakenly type the domain name into an internet browser in an effort to reach the A Site and are misdirected to the H web site are likely to believe that they have reached an affiliate of A. The H web site is essentially identical to the A Site and there is no indication whatsoever on the H web site that it is not affiliated or sponsored by A. Moreover, the H web site offers products that are directly competitive with A�s core product categories. A began selling books on its web site in 1995. Since then, it has become the largest seller of books, music and video on the Internet. These products are also sold on the H web site.
The similarities between Respondent�s domain name and Complainant�s mark and between the H web site and products offered thereon and Complainant�s web site and products lead to the ineluctable conclusion that Respondent registered and uses the domain name in order to misdirect Internet users to the H web site by creating a likelihood of confusion among consumers attempting to reach the genuine A Site.
Moreover, Respondent�s purpose in registering and using the counterfeit domain name can only be to disrupt Complainant�s business by depriving it of revenues that would rightfully belong to A.
Paragraph 4(b) explicitly recognizes that the "bad faith" circumstancesset forth therein are nonexclusive. Bad faith can be inferred from Respondent�sfailure to respond to Complainant�s efforts to make contact regarding the disputeddomain name. See Encyclopaedia Britannica, Inc. v. John Zuccarini et al.,WIPO Case No. D2000-0330 (June 7, 2000)(bad faith based on respondent�s failure to respond to demand email). On February21, 2002, Complainant wrote to the email address provided to BulkRby Respondent as a contact address, informing Respondent that the registrationof the domain name violates Complainant�s rights pursuantto the UDRP and several state and federal laws of the United States. SeeAnnex 28 to the Complaint. To this day, Respondent has not responded to Complainant�semail.
Respondent�s bad faith further can be inferred from Respondent�s use of Complainant�s entire mark in the domain name. Panel decisions have held that there can be no legitimate purpose for the use of a domain name incorporating an entire trademark owned by another. The domain name fully incorporates the AMAZON.COM® mark. These facts compel a finding that Respondent registered and uses the domain name in bad faith.
Finally, the Complainant has requested the Panel to transfer the domain name at issue from the Respondent to the Complainant.
B. Respondent
Respondent has not contested the allegations of the Complaint.
6. Discussion and Findings
Jurisdiction of Administrative Panel
Paragraph 4(a) of the Policy states:
"You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith."
Complainant has made the relevant assertions as above. This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute.
Whether the Domain Name is Identical or Confusingly Similar to a Trademark
Complainant's trademark is AMAZON.COM®, which notably includes".com" as a part of the trademark, proclaiming the Internet basisof Complainant's business. The disputed domain name is writtenin the way some users might incorrectly spell or type Complainant's trademark,either because they have only heard it spoken, or have been incorrectly informed,or through accidental mis-typing, or for some other reason. Numerous precedentDecisions have found confusing similarity where a domain name is a minor ortypographical variation on a trademark, or phonetically equivalent (e.g., InfoS,Inc. v. Registrar Administrator Lew Blanck, WIPOCase No. D2000-0069; Telia AB v. Alex Ewaldsson and Birgitta Ewaldsson,WIPO Case No. D2000-0599; Reuters Limitedv. Global Net 2000, Inc., WIPO CaseNo. D2000-0441; Neuberger Berman Inc. v. Alfred Jacobsen,WIPO Case No. 2000-0323).
The disputed domain name is phonetically identical and confusingly similar to Complainant's trademark and the Panel finds for Complainant in terms of Paragraph 4(a)(i) of the Policy.
Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name
Complainant must prove that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant has made out a prima facie case by certifying that as the owner of the distinctive trademark AMAZON.COM® it has not granted to Respondent any rights to use the trademark. It is for the Respondent to rebut this and he has not done so.
There is no evidence that Respondent's activities correspond to any of the illustrative circumstances in Paragraph 4(c) of the Policy by which he may establish rights. Specifically he has not offered any evidence that, before any notice of the dispute, his use of the domain name or a name corresponding to the domain name was in connection with a bona fide offering of goods or services (Paragraph 4(c)(i)); or that he (as an individual, business, or other organization) has been commonly known by the domain name (Paragraph 4(c)(ii)); or that he was making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to divert consumers misleadingly or to tarnish Complainant's trademark (Paragraph 4(c)(iii)).
The Panel finds for Complainant under Paragraph 4(a)(ii) of the Policy.
Whether Domain Name Has Been Registered and Is Being Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires Complainant to prove that the domain name has been registered and is being used in bad faith. Paragraph 4(b) lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b)(iv) is especially pertinent in providing for a finding of bad faith where:
"by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
The disputed domain name is in use since it resolves to a web site of H, selling goods or services comparable with those offered by Complainant. The H web site and Complainant's authentic web site have at least superficial similarities of style (Complainant's Annexes 25 and 27). On the evidence it is clear that Respondent seeks to derive commercial benefit by acting as an affiliate, or agent, of the ultimate web site.
Respondent evidently is familiar with the sphere of Internet-based commerce. In that sphere the Complainant's trademark AMAZON.COM® is so well known, being practically a euphemism for an Internet bookstore (among other things), that it is inconceivable Respondent was unaware of the trademark, its connotations and its commercial attractiveness.
Respondent has constructed a domain name that almost matches Complainant'strademark except for having on additional letter "m". The ploy of"typo-piracy" is well recognized, whereby a domain name is composedwith the intention of trapping users who seek the web site of a known trademarkbut make a predictable spelling or typing mistake. The idea is to divert thoseusers to a site unrelated to the trademark holder in order to sell them goodsor services (Playboy Enterprises International Inc. v. SAND WebNames- For Sale, WIPO Case No. D2001-0094;Travelprice Com v. Pissin Chicken Inc., WIPOCase No. D2002-0129; Novus Credit Services Inc. v. Personal,WIPO Case No. D2000-1158; World WrestlingFederation Entertainment, Inc. v. Matthew Bessette, WIPOCase No. D2000-0256; InfoS, Inc. v. Registrar AdministratorLew Blanck, WIPO Case No. D2000-0069).
There can be no reasonable explanation for Respondent's activities other thanto attract Internet users who are confused about the correct spelling of Complainant'strademark or who type it wrongly, and to lead them into believing they havereached a web site associated with Complainant. In any case, the diversion byconfusion is evidence of bad faith, rather than the content of the ultimatedestination (Bass Hotels & Resorts, Inc. v. Mike Rodgerall, WIPOCase No. D2000-0568). Respondent's failure to reply to a cease and desistcommunication sent by email to his address of registration is further evidenceof bad faith (Ebay, Inc. v. E and Tony Caranci, WIPOCase No. D2000-1632). Respondent's activities precisely match those of Paragraph4(c)(iv) of the Policy and the Panel finds bad faith proven.
Respondent is competing with Complainant for Internet-derived business. Diversion of traffic away from Complainant's web site for Respondent's commercial advantage is bound to have a disrupting effect on the business of Complainant. This activity constitutes bad faith in terms of Paragraph 4(b)(iii) of the Policy.
The circumstances listed in Paragraph 4(b) are illustrative only and bad faithmay be found otherwise. Appropriation of a universally recognized trademarkof which Respondent had actual or constructive knowledge is of itself sufficientto constitute bad faith registration (Veuve Cliquot Ponsardin, Maison Fondéeen 1772 v. The Polygenix Group Co., WIPOCase No. D2000-0163), and there has been bad faith use as described above.The Panel additionally finds bad faith proven in these terms.
7. Decision
The Decision of the Administrative Panel is that the disputed Domain Name is confusingly similar to the trademark AMAZON.COM® in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed Domain Name; and that Respondent has registered and is using the disputed Domain Name in bad faith. The Domain Name shall be transferred to the Complainant.
Clive N. A. Trotman
Presiding Panelist
Jonas Gulliksson David W. Plant
Panelist Panelist
Dated: August 13, 2002
Full & Egal Universal Law Academy